The Criminal Law (Sexual Offences and Related Matters) Amendment
Act (1) (the Act) provides for the provision of post-exposure
prophylaxis (PEP) and free medical advice at designated public health
establishments for sexual offence victims who have been exposed to the
risk of HIV infection. (2) 'Sexual offence' in this context
means 'a sexual offence in which the victim may have been exposed
to the body fluids of the alleged offender'. (3)

For persons exposed to the risk of HIV infection as a result of a
sexual offence to qualify for free medical advice and PEP, they must
within 72 hours after the alleged offence: (i) lay a charge against the
alleged perpetrator with the South African Police Service (SAPS); or
(ii) report the alleged sexual offence in the prescribed manner to a
designated health establishment. (4) Victims need only report to one or
the other, but if they wish to lay a criminal charge, this must be
reported to the SAPS.

The Act seems to envisage that a charge relating to a sexual
offence may be laid on behalf of the victim by an interested person, (5)
viz. 'any person who has a material interest in the well-being of a
victim, including a spouse, same sex or heterosexual permanent life
partner, parent, guardian etc'. (3)

Sexual offence victims, or interested persons acting on their
behalf, who report the alleged offence in the prescribed manner, must be
informed by the relevant SAPS officer, medical practitioner or nurse of:
(i) the importance of obtaining PEP for HIV infection within 72 hours
after the alleged sexual offence; (ii) the need to obtain medical advice
and assistance regarding the possibility of other sexually transmissible
infections; and (iii) free services available at designated health
establishments. (6) The victim or interested person should also be
handed a notice containing the prescribed information regarding the
compulsory HIV testing of alleged sexual offenders, and have its
contents explained. (7)

To assist sexual offence victims to identify where they can obtain
free medical advice and PEP, the Act provides that they should be
supplied with a 'prescribed list' containing details of
accessible public health establishments. (8) The list of designated
public health institutions that can provide PEP and carry out compulsory
HIV testing must be published in the Government Gazette and distributed
to relevant role-players. (9)

Provision of free medical advice and PEP: duties of doctors

Doctors working at designated health establishments should provide
victims with the necessary free medical advice and PEP treatment as well
as the notice containing the prescribed information regarding compulsory
HIV testing of the alleged offender, and explain its contents. (8)

Doctors in private practice or working for non-designated health
establishments should: (i) have a list (which is available from
magistrates' courts, police stations, prisons and departments of
health) of designated health establishments that provide free medical
advice and PEP to sexual offence victims; and (ii) refer victims who
cannot afford to pay for their services to such establishments. Doctors
in non-designated health establishments should also keep copies of the
notice regarding the compulsory HIV testing of alleged sexual offenders.
Such doctors should always ensure that victims who are referred to
designated health establishments for medical advice and PEP are likely
to report there within 72 hours after the alleged sexual offence. This
will enable victims to receive effective treatment, and they (or an
interested person on their behalf) will be able to apply to a magistrate
for compulsory HIV testing of the alleged offender. (4)

Doctors should provide sexual offence victims who are able to
afford the services of non-designated establishments with the necessary
medical advice and PEP, where indicated. Where the 72-hour limit is due
to expire, doctors at non-designated establishments should treat the
situation as a medical emergency (10) and provide victims with the
necessary PEP if indicated. Victims should also be given copies of the
notice about compulsory HIV testing of alleged sexual offenders, and its
contents should be explained. Victims should be referred to the SAPS
within 72 hours should they wish to apply to a magistrate for an order
compelling the alleged offender to be tested for HIV. (4) If 72 hours
have expired by the time that treatment is completed, and before the
victim or an interested person can report the alleged offence to the
SAPS, an investigating officer may still apply to a magistrate for
compulsory HIV testing of the alleged sexual offender after the victim
has laid a charge. (11)

Whether doctors are employed at designated health establishments or
not, the Act provides that if they have knowledge that a sexual offence
has been committed against a child (a person under 18 years of age),
(12) they must report this immediately to the police. (13) Additionally,
if they have knowledge, a reasonable belief or suspicion that a sexual
offence has been committed against a mentally incompetent person, they
must report this immediately to the police. (14)

David McQuoid-Mason is Professor of Law at the Centre for
Socio-Legal Studies, University of KwaZulu-Natal, Durban, and teaches
medical law. He has had many articles published in law journals,
contributed numerous chapters to various books, is the sole author of 2
books, and has co-authored 10 books. He has taught continuing legal
education courses for the legal profession throughout South Africa, and
in Ethiopia, Malawi, Namibia, Zambia and Zimbabwe.